In November, I posted about a Colorado judge restricting one parent’s anti-gay speech as part of a child custody order:
A Christian mother is appealing a judge’s decision that prohibits her from teaching her daughter that homosexuality is wrong.
Cheryl Clark, who left a lesbian relationship in 2000 after converting to Christianity, was ordered by Denver County Circuit Judge John Coughlin to “make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic.” . . .
Her former lover, Elsey McLeod, was awarded joint custody of the child, an 8-year-old girl who is Dr. Clark’s daughter by adoption. . . .
I noted that judges have restricted many different kinds of speech in child custody orders, including pro-gay speech as well. (I know of a couple of cases in the 1970s, but I’m sure there were others since.) Well, here’s a case from earlier this week that likewise involves a restriction on pro-gay speech (thanks to How Appealing for the pointer):
On February 6, 2002, Cher Lynn Hogue, mother of the couple’s minor child, filed a complaint for divorce alleging irreconcilable differences and inappropriate marital conduct. In the complaint she alleged that her husband Joseph Randolph Hogue, Jr., Appellant and father of the minor child, left the marital home, his wife and child to “pursue his gay lifestyle.” She further alleged that her husband would expose their son to his new lifestyle, that such exposure was against the advice of the child’s counselor and requested a restraining order to prevent such.
A Temporary Restraining Order was entered the day the Complaint was filed, which reads in pertinent part:
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Husband, Joseph Randolph Hogue, Jr., shall be and he hereby is RESTRAINED, pending a final hearing in this cause, from taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle.
On August 2, 2002 Wife filed a Petition for Contempt alleging that Husband had violated the restraining order by allowing the child to be in the presence of the father’s “gay lover” at Husband’s apartment and at church and that Husband told the child that he was gay. . . . The Complaint alleges that Husband made statements such as “when someone is gay, they are born like that;” that his boyfriend is in love with him; that “Sean (Husband’s boyfriend) is attracted to big men;” and that he (Husband) thought
his son was old enough to understand about his father’s lifestyle. Further, Wife alleged that Husband’s boyfriend’s shoes are in the child’s closet at Husband’s apartment and that his clothes are scattered about the apartment. On September 16, 2002 the Chancellor found Husband to be in contempt for telling his son that he was gay and sentenced him to serve two days in the Williamson County Jail. The Chancellor also modified the parenting plan by eliminating all of Husband’s Thursday night visitations with his son, limiting Tuesday night visitations, and authorizing Wife to make all decisions regarding their son with the exception of emergency decisions that may arise while Husband and his son were visiting. . . .
The appellate court ultimately set aside the contempt citation, because it found that that the order “did not put Husband on notice that he was restrained from telling his son that he was gay.” Nonetheless, the court upheld the order generally, though without making it clear just what its boundaries were. Oddly enough, the decision doesn’t mention the First Amendment at all, which is usually a sign that the challenger didn’t raise a First Amendment argument, or raised it only in passing.
By the way, the reason I say the order is a speech restriction is two-fold: First, the trial court clearly saw it as a speech restriction, in concluding that it barred the father even from saying that he was gay; though the appellate court concluded the order didn’t go that far, presumably the trial judge intended the order to apply to other kinds of speech as well, such as to broader discussions of the father’s gay lifestyle.
Second, the concern that seemed to be animating the trial judge was that exposure of the child to the father’s gay lovers or the father’s gay lifestyle would send the wrong message to the child: a message that homosexuality is acceptable behavior. (Again, this is made clear by the trial judge’s contempt citation.) The judge was thus restricting the activities “taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle” precisely because of their expressive content. It’s pretty well-settled First Amendment law that when physical conduct is restricted precisely because of the message it sends, it’s treated as a speech restriction. That’s why we’d pretty clearly understand an order barring “taking the child around or otherwise exposing the child to [Catholics / Communists / objectivists] and/or his [Catholic / Communist / objectivist] lifestyle” as a speech restriction — it would prevent physical conduct (taking a child places and showing him things) precisely because of the message that the conduct is likely to send. Likewise for this order.
Had the order been aimed at preventing noncommunicative harm to the lifestyle — e.g., a ban on “taking the child around or otherwise exposing the child to crocodiles and/or his close-contact-with-crocodiles lifestyle” — then I think there’d be much less of a First Amendment problem. But the trial judge’s actions, as well as the terms of the order, make clear that this order was aimed precisely at preventing the father from teaching the child that homosexuality is acceptable.
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